Few
words play a more central role in modern constitutional law without
appearing in the Constitution than
“dignity.” The term appears in more than nine hundred Supreme
Court opinions, but despite its popularity, dignity is a concept in
disarray. Its meanings and functions are commonly presupposed
but rarely articulated. The result is a cacophony of uses so confusing
that some critics argue the word ought to be abandoned altogether.
This
Article fills a void in the literature by offering the first empirical
study of Supreme Court opinions that invoke dignity and then proposing
a typology of dignity based on an analysis of how the term is used in
those opinions. The study reveals three important findings.
First, the Court’s reliance on dignity is increasing, and the Roberts
Court is accelerating that trend. Second, in contrast to its past
use, dignity is now as likely to be invoked by
the more conservative Justices on the Court as
by their more liberal counterparts. Finally, the
study demonstrates that dignity is not one concept, as other scholars
have theorized, but rather five related concepts.
The
typology refers to these conceptions of dignity as
institutional status as dignity,
equality as dignity, liberty as dignity,
personal integrity as dignity, and
collective virtue as dignity. This Article traces each type
of dignity to its epistemic origins and describes the substantive dignitary
interests each protects. Importantly,
the typology offers more than a clarification of the conceptual chaos
surrounding dignity. It provides tools to track the Court’s
use of different types of dignity over time. This permits us to
detect doctrinally transformative moments, in such areas as state sovereign
immunity and abortion jurisprudence, that arise from shifting conceptions
of dignity.